State v. Bixby

Justice PLEICONES.

I respectfully dissent and would reverse appellant’s capital sentences. I find reversible error in the trial judge’s limitation of voir dire and in his decision to admit the funeral video. I would therefore reverse and remand for a new sentencing proceeding.

*561I. Voir Dire

Appellant contends the trial judge committed reversible error when, mid-voir dire, he refused to allow counsel to continue to explore the potential jurors’ understanding of the definition of murder. The majority first holds this issue is not preserved because appellant did not exhaust his peremptory challenges. I disagree with this preservation ruling: appellant’s contention is that the trial court’s limitation of voir dire denied him the information necessary to decide whether to challenge a juror for cause, or whether to exercise a peremptory challenge should it be necessary. See State v. Woods, 345 S.C. 583, 550 S.E.2d 282 (2001) (purpose of voir dire is not only to determine whether a juror is subject to a challenge for cause, but also to allow the parties to elicit information which will allow them to intelligently exercise their peremptory strikes). Appellant’s failure to exhaust his strikes cannot be a procedural bar where his contention is that the trial judge’s ruling deprived him of the very information he needed to intelligently exercise these strikes.

The issue was preserved when appellant objected to the curtailment of voir dire, and the number of peremptory challenges used is irrelevant. The majority also appears to hold that all jurors seated were qualified based upon their answers to the pretrial questionnaire and because the questioning permitted by the trial judge was sufficient. I disagree.

While the scope of voir dire is generally left to the trial judge’s discretion, it is reversible error to limit questions in a manner that renders the trial fundamentally unfair. State v. Stanko, 376 S.C. 571, 658 S.E.2d 94 (2008) citing Mu’Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). A prospective juror in a capital case must be excused for cause when his beliefs or attitudes against capital punishment would render him unable to return a verdict according to law, S.C.Code Ann. § 16-3-20(E) (2003), or when his views on capital punishment would prevent or substantially impair his ability to act in accordance with his oath and the judge’s instructions. State v. Evins, 373 S.C. 404, 645 S.E.2d 904 (2007) (internal citations omitted).

As we have acknowledged, a juror may affirmatively answer the inquiry “whether she would consider all the evidence *562before deciding the appropriate sentence,” but upon further inquiry reveal that the only evidence that would cause her to return a life sentence would be that the killing was done unintentionally or in self-defense. State v. Evins, supra. The early voir dire in this case, where the judge permitted the potential jurors to be questioned about their understanding of the definition of murder, led to a number of jurors being dismissed for cause despite their initial indication that they could return either a life or a death sentence.12 There can be no question but that this jury pool contained a number of individuals who equated all killings with murder, but who upon learning that murder was not an accident, a killing in self-defense, or a “passion killing,” were not willing to entertain the possibility of a life sentence. Once the trial judge refused to allow appellant to define murder for these venirepersons, and declined appellant’s request that the trial judge himself define that term, appellant was left without the means to make informed decisions about challenges for cause or the exercise of his peremptory challenges.

In Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the Supreme Court held that a capital defendant was constitutionally entitled to challenge for cause any juror who would automatically vote for death. The Court held:

We deal here with petitioner’s ability to exercise intelligently his complementary challenge for cause against those biased persons on the venire who as jurors would unwaveringly impose death after a finding of guilt. Were voir dire not available to lay bare the foundation of petitioner’s challenge for cause against those prospective jurors who would always impose death following conviction, his right not to be tried by such jurors would be rendered as nugatory and meaningless as the State’s right, in the absence of questioning, to strike those who would never do so.

*563The Court recognized that voir dire was the only method by which these jurors could be detected, explicitly rejecting the state’s contention that “general fairness” and “follow the law” questions were sufficient:

As to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed. More importantly, however, the belief that death should be imposed ipso facto upon conviction of a capital offense reflects directly on that individual’s inability to follow the law. Any juror who would impose death regardless of the facts and circumstances of conviction cannot follow the dictates of law. See Turner v. Murray, 476 U.S. [28] at 34-35, 106 S.Ct. [1683] at 1687-1688 [90 L.Ed.2d 27 (1986) ] (plurality opinion). It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so. A defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception. The risk that such jurors may have been empaneled in this case and “infected petitioner’s capital sentencing [is] unacceptable in light of the ease with which that risk could have been minimized.” Id., at 36, 106 S.Ct. [at] 1688 (footnote omitted). Petitioner was entitled, upon his request, to inquiry discerning those jurors who, even prior to the State’s case in chief, had predetermined the terminating issue of his trial, that being whether to impose the death penalty.

In my opinion, the trial judge’s mid-voir dire ruling, denying appellant the opportunity to discern which jurors would in fact be able to follow their oath and instructions, denied appellant his right to a fair sentencing proceeding, and requires that we reverse his capital sentences. It is not reasonable to expect that laypersons in the venire enter the courtroom with an understanding the legal definition of “murder.”

II. Funeral Videotape

The majority affirms because it finds the video tape of Deputy William’s funeral was properly admitted as victim *564impact evidence under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), and because it finds the dramatization of the 911 call admitted as evidence less inflammatory than a staged funeral procession conducted during the State’s closing argument. Compare State v. Northcutt, 372 S.C. 207, 641 S.E.2d 873 (2007). I would reverse.

In my opinion, the video did not demonstrate anything about the victim’s uniqueness, or the impact of his loss on his family or friends or on community groups with which he had been involved. Instead, the video contains a staged 911 call which, we are informed, is standard at law enforcement funerals' and thus not related to Deputy Wilson as an individual. Moreover, video of unidentified mourners does not demonstrate the impact of Deputy Wilson’s death on his family or friends,13 but rather reflects the affect of unidentified persons attending the funeral. Payne evidence is intended to show the lasting consequences of victim’s death, while a funeral video merely preserves the visible expressions of grief exhibited by persons attending the service.

Under Payne, the jury is constitutionally permitted to consider “the specific harm caused by the crime in question” through the introduction of “evidence about the victim and about the impact of the murder on the victim’s family.” In my view, Payne evidence must be presented through testimony of those who have suffered as a result of the victim’s death. Cf. Humphries v. State, 351 S.C. 362, 570 S.E.2d 160 (2002) (Payne permits victim impact evidence in the form of testimony). I find the video tape, including the staged 911 call, did not constitute Payne evidence.

Unlike the majority, I find appellant suffered prejudice as the result of this improper evidence. I venture to say there are few individuals who could view this video without themselves being moved both by sympathy for the mourners and by outrage at the person who inflicted this suffering. Even if *565appellant did not suffer prejudice, I would hold the admission of this video violated the statutory prohibition of a death sentence “imposed under the influence of passion, prejudice, or any other arbitrary factor,” S.C.Code Ann. § 16-3-25(0(1) (2003), and thus requires that we reverse the sentencing proceeding.

CONCLUSION

I would reverse appellant’s capital sentences and remand for a new sentencing proceeding, at which the funeral video would not be admissible.

WALLER, J., concurs.

. E.g., Mr. Ellifrits affirmed to the trial judge that he could return either a life or a death sentence. On appellant's voir dire, after having murder defined, he stated that all cold blooded murderers, i.e. those who did not kill in self-defense or by accident, deserved death. Mr. Rollings also affirmed to the trial judge that he could return either sentence. On voir dire, however, after having murder defined and distinguished from other types of killings, he testified that all murderers deserve a death sentence.

. The majority holds the video demonstrated the impact of Deputy Wilson's death on the community. In my opinion, this is a misapprehension of victim impact evidence. It is permissible to present evidence, through the testimony of the deceased's friends or family, of the impact of the decedent's loss, including the loss to the community. There is no general "community impact loss” component of victim impact evidence under Payne.